International Law

The Conception of International Law as a Legal System

This article mainly discusses the concept of public international law. This paper examines the basic nature of international law as well as its legal theories. This paper will begin with the introduction of public international law and then a brief discussion about the topic. (Research issues, questions, etc.). International law serves the same social function as other types of law. It is a mode of society’s self-constitution, namely the international society of the entire human race, the society of all societies. Law is a set of legal relationships that constrain social action in order to serve the common good. Law is the result of social processes that define society’s common interests and organize the creation and application of the law.

The international legal system incorporates all subordinate legal systems (international constitutional law) and governs the international public sphere as well as the interaction of subordinate public spheres (international public law). The international legal system includes national legal systems (including private international law). International law takes two forms: customary law, in which society orders itself through self-ordering experience, and legislative law (treaties). At any given time, the state of international law reflects the level of development of international society. Recent developments in international society have made the recognition of international law as the fully effective law of a fully functioning international society necessary and unavoidable, but that recognition faces a number of problems and impediments that must be overcome.

Keywords: public international law, sources of public international law, legal rules, custom, treaties

Introduction

In previous times international law was also known as the law of nations. And it was developed in late medieval ius gentium.

The international law is obtained from four sources, enumerated under article 38(1).

  1. Treaties
  2. Customary International Law
  3. General Principles of Law
  4. Judicial Decisions

Theodore Woolsey began his definition of international law in an 1860 textbook, Introduction to the Study of International Law, by saying, “nations or organized communities of men differ from the individual men of a state, in that they are self-governed, that no law is imposed on them by an external human power, but they retain the moral accountable nature, which lies at the foundation of a single society.” Over 150 years later, Woolsey’s concepts have evolved and become more explicit, resulting in a set of doctrines, rules, and norms known as public international law.

Because public international law lacks a traditional enforcement framework, there is no worldwide policing organization to ensure that treaties are followed. Nations instead submit to international law by signing treaties and accepting customary laws and agreed-upon general principles of law. Mutual respect among nations, as well as the understanding that a violation of any concept may result in retaliation from other nations in the form of economic or even military sanctions, generally leads to nations adhering to accepted standards of public international law.

This research guide focuses on the origins of public international law, how it evolves, and how it can be studied. Researching this topic frequently necessitates reliance on a diverse range of resources, ranging from explicitly written multilateral treaties to scholars’ interpretations Public International Law is made up of the laws, rules, and principles of general application that govern the behavior of nation-states and international organizations among themselves, as well as their relationships with individuals, whether natural or juridical. Public International Law is also known as the “law of nations” or simply “International Law.

” It should not be confused with Private International Law, which is primarily concerned with the resolution of legal conflicts in international settings, determining which country’s law applies to specific situations.

The researcher must also be familiar with Comparative Law, which is the study of differences and similarities between the laws of different countries. Comparative law is the study of the world’s various legal systems, such as common law, civil law, socialist law, Islamic law, Hindu law, and Chinese law.

Because there is no centralized international body that creates public international law, research in this area necessitates a wide range of sources. A good starting point for research in this area in the United States is the Restatement of the Law (Third), the Foreign Relations of the United States, which explains how international law applies in the United States. This guide is intended to serve as an introduction to the topic and to assist researchers in locating the most commonly used sources and materials in the field, with a primary emphasis on electronic research of internationally accepted legal principles.

Research Methodology

I followed secondary data collection procedures. This is a doctrinal investigation. I’ve also used books, treatises, articles, notes, comments, and other writings to incorporate the various perspectives of a wide range of jurists in order to present a comprehensive picture. In this paper, I used Case Law extensively to identify a trend in judicial pronouncements.

Research objectives

  1. Identify international law concepts relevant to real-world international disputes; apply international law concepts to complex, real-world facts as part of a dispute resolution process;
  2. Evaluate the merits of international law claims arising in real-world international
  3. Disputes; analyze the relevance of international law to real-world international disputes
  4. And make basic predictions about the course of real-world international

History of Public International Law

Treaties, for example, are basic concepts in international law that date back thousands of years. A treaty between the rulers of the Mesopotamian city-states of Lagash and Umma, inscribed on a stone block around 2100 BC, established a prescribed boundary between their two states. Around 1000 BC, Ramses II of Egypt and the king of the Hittites signed an agreement establishing “eternal peace and brotherhood” between their two nations: dealing with territorial respect and establishing a defensive alliance. Prior to Alexander the Great, the ancient Greeks formed many small states that interacted constantly. In both peace and war, an inter-state culture developed that established certain ground rules for how these states would interact.

Although these rules did not apply to interactions with non-Greek states, the Greek inter-state community resembled the modern international community in some ways.

The Roman Empire did not create international law because it dealt with territories that were not already part of the empire without regard for external rules.

However, the Romans did create municipal laws that governed interactions between private Roman citizens and foreigners. These laws, known as the jus gentium (in contrast to the jus civile, which governs interactions between citizens), codified some basic ideas of fairness and attributed some rules to an objective, independent “natural law.” These jus gentium concepts of justice and natural law have persisted and are reflected in modern international law.

Sources of Public International Law

The statute of the international court of justice

The International Court of Justice, established by the United Nations Charter as the primary judicial organ of the United Nations, shall be established and operate in accordance with the provisions of the present Statute. The International Court of Justice, established by the United Nations Charter as the primary judicial organ of the United Nations, shall be established and operate in accordance with the provisions of the present

International custom

Customary international law reflects certain practices that states repeatedly and consistently follows and accepts as law ( opinio juris ). Customary law, along with the law codified in international conventions, is one of the oldest sources of international law, as defined by the International Court of Justice (ICJ) as “evidence of a general practice accepted as law” (Art. 38.1 of the ICJ Statute). States create legal norms in the international arena not only by expressly stating their will through international conventions, which is known as conventional law, but also through their conduct. Written law accounts for only a small portion of international law.

Treaties

A treaty is defined as “any written international agreement concluded between two or more States or other subjects of international law and governed by international law. “Treaties are frequently classified based on the number of signatory nations. Bilateral treaties involve two nations and are typically similar to Multilateral treaties that involve more than two nations and can address a wide range of international issues or concerns. Treaties can also be referred to as conventions, protocols, covenants, charters, statutes, acts, declarations, agreements, partnerships, and so on.

General principles of law

The current draught conclusions are about general legal principles as a source of international law. A general principle of law must be recognized by all states in order to exist. General principles of law include those that are “a) derived from national legal systems, and (b) formed within the international legal system.” Laches, good faith, res judicata, and the impartiality of judges are examples of these general principles of

Judicial decisions

Judicial decisions and juristic writings are considered auxiliary sources of international law, whereas it is unclear whether the general principles of law recognized by “civilized nations” should be considered a principal or auxiliary source of international law. Article 38 (1)(d) refers to judicial decisions as a secondary means of determining legal rules.

Specific Topics

International Environment Law

Over the last few decades, international environmental law has evolved as a result of the realization that a state should not use its territory or resources to harm another. The first case concerns the regulation of air and river pollution, which gave rise to the so-called polluter pays principle. The realization that many environmental issues cross borders and go beyond pollution sparked a new awareness that what needed to be addressed was not only the effects of human behaviour on the environment but also environmental values and guidelines for precautionary measures before action is taken. Today’s central debate is about the relationship between economic development and environmental protection.

The goal of sustainable development is to support economic growth in an environmentally sustainable manner.is an attempt to reconcile two seemingly opposing ideas.

Different approaches to environmental protection have emerged under international law. First, liability and compensation regimes hold states accountable for environmental damage. Because these regimes are difficult to negotiate, they have proven difficult to implement. Second, the duty to consult and notify requires states to notify other countries about environmental problems and emergencies. Third, pollution regulation, such as setting emission limits and establishing environmental standards that must be met, has resulted in some progress. The 1997 Kyoto Protocol, which was part of the 1992 UN Framework Convention on Climate Change, set a goal of reducing greenhouse gas emissions by 6% from 1990 levels by 2012. Fourth, depending on the pollutant, the permission approach allows for different scenarios (e.g., black lists of prohibited materials or white lists of materials with few or no restrictions; this scheme plays a role in regulating waste such as ocean dumping, chemicals, and pesticides). Along the same lines, the Kyoto Protocol established an emissions trading scheme. Finally, if environmental protection is linked to trade and economic interests, the strongest approach is generally taken. For example, the Convention on International Trade in Endangered Species restricted the trade of rare animals and plants, removing incentives for investors (Birnie, Boyle, & Redgwell, 2009).

International Economic Law

The global economy is one of the most important objects of international law. As previously stated, one of the oldest areas of application of international law is the establishment and regulation of trade relationships between sovereign entities. International economic law encompasses international trade rules, international trading and monetary system regulations, and international development and investment principles. International commercial law evolved from the lex mercatoria and lex Maritima, two bodies of law dating back to the Middle Ages. Today, international private law deals with cross-border transactions, contracts, and dispute resolution between private actors.

The global market is the focus of international trade and monetary law. Tariffs (import taxes on foreign goods) are the primary focus. quotas (limitations of quantities of imported goods) (limitations of quantities of imported goods). The International Monetary Fund (IMF), the World Bank Group, and the World Trade Organization are the most important actors involved in international trade and monetary law (WTO, the successor organization of the General Agreement of Tariffs and Trade, or GATT, regime). The IMF is in charge of the global financial system, with the goal of stabilizing international exchange rates and encouraging development. The World Bank provides loans, advice, and assistance to developing countries in order to alleviate poverty. The WTO’s key components are trade equality, dispute resolution, and tariff elimination. All three organizations have had a significant impact on international relations, and some scholars see the future of international law in international regulatory bodies.

Cases

  • Aegean Sea Continental Shelf (Greece v. Turkey)
  • Nuclear Tests (Australia France)
  • Nuclear Tests (New Zealand v. France)
  • Fisheries Jurisdiction (United Kingdom Iceland)
  • Fisheries Jurisdiction (the Federal Republic of Germany v. Iceland)
  • Trial of Pakistani Prisoners of War (Pakistan v. India)

Research Questions

Why there is a need for public international law?

Answer: The primary goal of Public International Law is to preserve a just system of international relations, rather than just an ordered system of such relations. The main subjects of international law are states. Initially, international law only governed relations between independent states, primarily in diplomatic relations and war.

Short Note on Monism and Dualism?

Answer: Although these rules did not apply to interactions with non-Greek states, the Greek inter-state community resembled the modern international community in some ways.

The Roman Empire did not create international law because it dealt with territories that were not already part of the empire without regard for external rules. However, the Romans did create municipal laws that governed interactions between private Roman citizens and foreigners. These laws, known as the jus gentium (in contrast to the jus civile, which governs interactions between citizens), codified some basic ideas of fairness and attributed some rules to an objective, independent “natural law.” These jus gentium concepts of justice and natural law have persisted and are reflected in modern international law. The principles of early Islamic law concerning military conduct and the treatment of prisoners of war under the early Caliphate are regarded as forerunners to international humanitarian law. The numerous requirements for how prisoners of war should be treated include, among other things, providing shelter, food, and clothing, respecting their cultures, and avoiding any acts of execution, rape, or revenge. Some of these principles were not codified until modern times in Western international law.

Under the early Caliphate, Islamic law established humanitarian constraints on military conduct, such as attempts to limit the severity of war, guidelines for ending hostilities, distinguishing between civilians and combatants, preventing unnecessary destruction, and caring for the sick and wounded.

What is the Basis of International Law?

Answer: International Law is based on the following two principles:

  • Jus Gentium: A set of rules that governs the relationship between two nations but is not part of a legal statute.
  • Jus Inter Gentes: These are treaties and agreements that are mutually accepted by both countries.

What is Recognition? Explain the Legal Effects of Recognition of a New State.

Answer: Recognition of A State: An existing state’s recognition or acceptance as an international personality by the international community. The declaration was made in order to fulfil certain essential conditions of statehood as required by international law.

Essentials of recognition

  • Population
  • Territory
  • Government
  • Sovereignty
  • Control should tend towards

Process of recognition

  1. States are not only institutions with international legal standing, but they are also the primary subjects of international law, with the broadest range of rights and
  2. The process of creating new states is the combination of fact and law, as well as the establishment of specific factual conditions and compliance with relevant
  3. States are not obligated to recognize new claimants to statehood and do not have a positive obligation to do so.
  4. Recognition is primarily a function of intent.

Define Territorial Sovereignty

Answer: The theoretical debate surrounding the concept of effectiveness and its definition demonstrates how effectiveness lies at the heart of the existential and foundational questions of law of nations, as evident when considering one of the key legal concepts of the law of nations, territorial sovereignty, whose understanding is critical to a correct conceptualization and analysis of unlawful territorial situations. Territorial sovereignty is typically defined as a political and legal expression that denotes a power, supremacy, or independence relationship between an actor, the state, and an object, the territory. The implications of the concept of effectiveness for the law of nations issues concerning the question of unlawful territorial situations, namely statehood, territorial sovereignty, and military occupation, will be considered.

Territorial sovereignty is the qualitative expression of the relationship between the state and the territory. As Article 2 (1) of the United Nations Charter expressly states, territory and its normative translation, that is territorial sovereignty, continue to be the foundation of the international legal order.

Explain State Jurisdiction According To Personal And Protective Principles?

Answer: State jurisdiction is a state’s ability under international law to prescribe and enforce legal rules. It is derived from state sovereignty and is a vital and central feature of it. It is a state’s authority over people, property, and events that occur primarily within its borders (its land, its national airspace, and its internal and territorial water). This authority includes the ability to prescribe the rules of law, enforce the rules of law, and adjudicate. The powers associated with state jurisdiction raise the issue of the types and forms of state jurisdiction. State jurisdiction may extend beyond its borders over persons and things with a national connection. This extension raises the issue of the grounds or principles. This expansion begs the question of the grounds or principles on which the State can assert its jurisdiction both within and beyond its borders. However, certain persons, property, and events within a state’s territory are immune from its jurisdiction. This limitation on State jurisdiction raises the issue of immunity from jurisdiction. The following sections address the answers to the questions raised above.

Conclusion

Since the beginning of modern international law in the 17th century, international law has expanded and deepened. It has grown to include not only European nation-states and European thought, but also ideas, values, and issues from around the world. Today, international law is truly global. Simultaneously, international law has expanded beyond the traditional issues of war, trade, and the law of the sea to include international environmental concerns and international criminal law. State sovereignty has become permeable—values like human rights cross borders, and actors like international organizations are playing increasingly important roles in international relations. Weapons of mass destruction, genocides, international terrorism, global poverty, and environmental issues will pose new challenges to international law in the twenty-first century. These issues can only be addressed through a comprehensive approach, which will be enabled by the interconnection and collaboration of various areas of international law.

Written By:- Lavika

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